Lisa Gillies v Medea Park Nursing Home

[2024] FWC 2691

[2024] FWC 2691

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lisa Gillies
v

Medea Park Nursing Home

(U2024/9874)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 SEPTEMBER 2024

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative

1. Ms Lisa Gillies applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 26 August 2024.

1. Ms Gillies stated in her unfair dismissal application (Form F2) that her employment with Medea Park Nursing Home (the Respondent) commenced on 5 June 2024 and her dismissal took effect on 2 August 2024.

1. On 29 August 2024, the Commission attempted to contact Ms Gillies on her nominated telephone number. A voicemail message was left requesting Ms Gillies to contact the Commission. This is because the information provided in her Form F2 suggested that she may not have served the minimum employment period to be protected from unfair dismissal under the Act.

1. On the same day, the Commission emailed correspondence to Ms Gillies’s nominated email address informing her that she had not served the applicable minimum employment period based on the information that she had provided in her Form F2. The correspondence directed Ms Gillies to file any documentation to support any claim that she had served the applicable minimum employment period under the Act. That correspondence also warned Ms Gillies that if she did not contact the Commission within 14 days, her application might be dismissed without further notice.

1. Later that day, a SMS notification was sent to Ms Gillies’s nominated mobile number requesting her to contact the Commission.

1. The Commission did not receive any documentation in support of Ms Gillies’s Form F2 that could evidence that she had worked for the Respondent for the applicable minimum employment period within the 14 day timeframe specified in the correspondence dated 29 August 2024.

1. The Commission attempted to contact Ms Gillies on her nominated telephone number on 6 September 2024. The call was not answered and a voicemail message was left requesting Ms Gillies to contact the Commission to urgently confirm whether would like to discontinue her application if she did not meet the minimum employment period. The voicemail message also informed Ms Gillies that her Form F2 was incomplete in that she had not paid the required application fee or lodged a completed fee waiver application (Form F80). Ms Gillies lodged a Form F80 that was entirely blank.

1. The Commission attempted to contact Ms Gillies on her nominated telephone number on 10 September 2024. The call was not answered and a voicemail message was left requesting Ms Gillies to contact the Commission in relation to the minimum employment period issue and that otherwise there was a risk that her matter might be dismissed. The voicemail message also requested Ms Gillies to confirm whether she would like to discontinue her application.

1. The Commission did not receive any documentation in support of Ms Gillies’ Form F2 that could evidence that she had worked for the Respondent for the applicable minimum employment period within the 14 day timeframe specified in the correspondence dated 29 August 2024.

1. On 17 September 2024, the Commission received an email from Ms Gillies who asked how her application was proceeding.

1. In response, the Commission forwarded its email correspondence dated 29 August 2024 that was sent to Ms Gillies’ nominated email address that day. The correspondence also warned Ms Gillies that if she did not contact the Commission by close of business on 17 September 2024, her application will be referred to the Member for determination.

1. On 18 September 2024, Ms Gillies emailed the Commission and relevantly stated as follows:

“I have been having trouble with this application when I call I am hung up on”.

1. On the same day, Ms Gillies sent another email to the Commission and relevantly stated as follows:

“I have try to wave the non payment due to no funds”.

1. The Commission made a final attempt to contact Ms Gillies on her nominated telephone number on 18 September 2024. The call was not answered and a voicemail was left confirming receipt of her two emails dated 18 September 2024 and stating that her correspondence did not evidence that she completed a period of employment with the Respondent of at least the minimum employment period under the Act. The voicemail message also informed Ms Gillies that if she did not contact the Commission urgently, her matter might be dismissed by a Commission Member by way of issuing a published decision on the Commission website.

1. To date, Ms Gillies has not responded to the Commission’s last attempt to contact her in relation to her Form F2 application.

1. Section 382 of the Act sets out that a person is protected from unfair dismissal if, inter alia, they completed a period of employment with their employer of at least the minimum employment period.

1. Section 383 of the Act sets out the meaning of minimum employment period as follows:

“383    Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.” (bold and italicised text in the original)

1. Section 395 of the Act provides as follows:

“395  Application fees  
  
(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.  
  
(2) The regulations may prescribe:  
  

(a) a fee for making an application to the FWC under this Division; and  
  
(b) a method for indexing the fee; and  
  
(c) the circumstances in which all or part of the fee may be waived or refunded.” (bold text in the original)  

1. Section 587 of the Act relevantly provides as follows:

“587    Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.” (bold text in the original)

1. The relevant Form F2 application has not been accompanied by the prescribed application fee or a completed Form F80 for the Commission’s consideration and, therefore, has not been made in accordance with the Act. More fundamentally in this case, however, to be protected from unfair dismissal, Ms Gillies needs to have completed a period of employment of at least 6 months with the Respondent. The material before the Commission indicates that Ms Gillies has not satisfied this requirement and, therefore, I am satisfied that her application has no reasonable prospects of success. As such, Ms Gillies’s unfair dismissal application is dismissed under s.587(1)(c) of the Act. An order[1] to this effect will be issued with this decision.    

DEPUTY PRESIDENT

[1] PR779707.

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<PR779706>